E-cigarettes back under the spotlight: Key considerations for marketing your products

With the recent reports that the UK Government is proposing to offer vape starter kits and behavioural support to one million smokers in a bid to encourage them to give up smoking tobacco products, e-cigarettes (also referred to as vapes) are back under the spotlight.

Whilst this could be seen as great timing for the vaping industry to take advantage of the media attention, careful consideration should be taken when marketing e-cigarette products.

Vaping is by no means seen as a safe and risk-free option. A vape/e-cigarette is a device which allows users to inhale vapour via a mouthpiece, or any component of that product, including but not limited to cartridges, tanks and e-liquids, rather than via smoke from burning tobacco. The e-liquid contains potentially harmful chemicals also found in cigarette smoke, but at much lower levels and it also eliminates the most harmful elements of tobacco smoke (tar and carbon monoxide).

As such, although e-cigarettes are seen as the less harmful option, they are strictly regulated in the UK and the Government's forthcoming proposals will also include measures to stem the increasing popularity of vaping amongst non-smokers, children and young people.

As such, we thought it would be timely to revisit the marketing rules that apply to e-cigarettes. Here's our list of key considerations when marketing your products:  

1.  General prohibition

Nicotine containing e-cigarettes (and their components) cannot be advertised directly or indirectly in most forms of media, including in print, online and some other forms of electronic media (including paid for media, your own website and channels that you controls), television, radio, on-demand television, product placement, sponsorship and retailer sites. There are certain exceptions which apply, including advertising in trade press and products which are either licensed as medicines or medical devices or certain non-nicotine containing products. However, advertising rules will still apply. Products that can be advertised must comply with the UK advertising codes of practices, including specific rules relating to e-cigarettes.

2.  Be socially responsible

Adverts must not encourage non-smokers or non-nicotine users to use e-cigarettes and you should ensure that your marketing content is socially responsible.

The UK advertising regulator, the Advertising Standards Authority ("ASA") has upheld complaints on this point, including in relation to claims such as "ONLY SMOKE IF YOU NEED TO" (Riot Labs Ltd), which was deemed to undermine the message that quitting tobacco was the best option for health. Another example is an ad which featured a group of adults using e-cigarettes and discussing the products in an outdoor restaurant (Vape Nation Ltd). A person in the group said, "I used to smoke normal cigarettes, but after I quit, I tried these. I actually prefer them". Whilst the ASA considered that the vast majority of the dialogue in the ad would mainly be of interest to smokers, the ASA were of the opinion that this statement would encourage non-smokers to take up using e-cigarettes which would be deemed irresponsible and found this ad to breach advertising rules. 

3.  Avoid associations with tobacco products

As is widely known, advertising and promotion of tobacco products is prohibited in the UK. Therefore, any ads which are permitted for e-cigarettes, must not contain any design, imagery or logo that could be associated with a tobacco brand and any marketing communication needs to make it clear that the product being marketed is an e-cigarette and not a tobacco product. Furthermore you should not promote or show the use of tobacco products in a positive light.

4.  Making health and medicinal claims

You should:

• avoid making any medicinal claims, unless your product is authorised by the Medicines and Healthcare product Regulatory Agency ("MHRA") to do so. Whilst the ASA acknowledges that certain e-cigarette products may be advertised as an alternative to tobacco, you must not undermine the message that quitting tobacco use is the best option for health;
• be aware that you may only make health claims if you hold product supporting evidence which is robust and specific; and 
• you should avoid making any unqualified claims. For example, the ASA highlights that to date it has not seen any evidence that supports assertions that a product is effective in helping people to quit smoking and therefore, related claims should be avoided. This is of particular interest given the Government's proposed initiatives in tacking tobacco smokers.

5.  Don't target,  feature or appeal to children

E-cigarettes are age-restricted products and therefore, must not be aimed at or have particular appeal to under 18s. This includes ads that are likely to reflect or be associated with youth culture, any characters likely to be of particular appeal to under 18s and anyone behaving in an adolescent or juvenile manner. For example, the ASA upheld a complaint in relation to electronic billboard ads featuring Santa Claus, a gingerbread man and an elf vaping due to the content and style of the ads and the inclusion of characters, which children would be familiar with (Fischen Medical Ltd).  

Ads should also not feature individuals who are or who appear to be under 25 years old. The ASA has upheld several complaints about ads breaching this rule, including a recent ruling against website content on the NEAFS website featuring people with e-cigarettes who appeared to be under 25. Although NEAFS had taken steps to verify the ages of the models and assess the appearance of models, one of the models would have been 24 at the time the ad was published and another was deemed to appear to be under 25 through a combination of her youthful and casual appearance and the language accompanying the headline text ("What NEAFS users are saying”) being attributable to a younger person -   "Hi, I purchased your … pack today at Heathrow Central bus station and I can certainly say your product is soooooo great!!!”. It is interesting to note that as well as checking the actual age of models and assessing their appearance, advertisers should also give consideration to any associated language (particularly language presented in the form of a testimonial) and the overall presentation of an ad. The same rule applies to advertising other age-restricted products, such as alcohol and gambling products.

6.  Don't mislead about product ingredients or where they may be used

Where products containing nicotine can be advertised (e.g. licensed medicines, trade advertising, outdoor etc.), it is important that you make it clear in your ads if any of your products contain nicotine.  The ASA upheld complaints by the MHRA in relation to a social media banner ad (Hubbly Bubbly Ltd). The ad in question featured individuals using non-nicotine containing e-cigarettes. However, the ASA determined that as the ad appeared on Hubbly Bubbly's Twitter page that it was promoting all of their product range, including its nicotine products. As such, Hubbly Bubbly should have made it clear that some of its products contained nicotine.

How can we help you?

We can help you by reviewing and advising on your marketing strategies, claims, content and supporting evidence and guiding you towards compliance with advertising law requirements.

If you have any queries or would like any further assistance on this or other advertising and consumer law matters, please do not hesitate to get in touch with Sara Stewart, Sonal Patel Oliva or another member of our Advertising & Consumer Protection group.